Page 4 of 4 FirstFirst ... 234
Results 31 to 39 of 39

Thread: Dismissal for theft

  1. #31
    Silver Member Petrichor's Avatar
    Join Date
    Nov 2011
    Location
    Johannesburg
    Posts
    427
    Thanks
    23
    Thanked 39 Times in 29 Posts
    It is threads like this one, that make TFSA the great forum that it is. Thank you all that contributed, as this will help me immensely. Just had an employee who decided to take something that did not belong to him, so I am now a bit more prepared that I was before reading the posts.

  2. #32
    Diamond Member Citizen X's Avatar
    Join Date
    Sep 2011
    Location
    lenasia
    Posts
    3,404
    Thanks
    868
    Thanked 701 Times in 613 Posts
    No, I haven't come across any leading case of any mitigating circumstance that can sucessfully prevent or delay the ultimate sanction of theft.
    “Ubuntu is the essence of being humane" Desmond Tutu
    Spelling mistakes and/or typographical errors I found in leading publications.
    Click here
    sabbaticus

  3. #33
    New Member
    Join Date
    Oct 2016
    Location
    south africa
    Posts
    2
    Thanks
    0
    Thanked 0 Times in 0 Posts

    Exclamation

    THEFT / FRAUD - unsure on how to proceed
    I have a similar issue / uncertainty :

    Some background - small company, 'service delivery' / health sector and my "2IC" is the employee i am questioning

    Things started to go missing (each time a value >R10 000) - as there was no direct proof and as the employee is in charge of every other department, I thought it might be a over reaction on my part and I started taking measures to audit stock. The job comes with a lot of freedom and is based on trust. That being said there is a JV / service level agreement in place with another company (later found out that my 2nd in charge has all savings etc invested in this company - this bothered me already as it is kind of conflict of interest)

    Nonetheless, I chose to believe that I am imagining things and carried on - there have now been several other incidents - too many to ignore - i was informed that this same person was using some of the other employees to fulfill tasks for the other company - i.e courier type of errands - there was a whole separate 'group chat' where communication would take place - all this was without my knowledge / consent - but as the person in question is their direct line manager - they obliged as it was assumed instructions came from me.
    During this period it became serious enough that it interfered with my business - therefore I once again took steps to try and relieve the employee of such free reign and put an impartial party in charge thereof.
    6 weeks later I received a resignation letter.

    However, in the meantime i had to go through proper channels to request security footage of one or two of the weekends which I determined were the most recent - only received this footage now - which confirms my suspicions though I am unsure if it is enough proof - footage shows employee over weekend (specifically a weekend this employee was not on duty) entering the office on 4 separate occasions, once with the “sister’ company owner (who in the meantime refuses to enter into a conversation after abruptly terminating any service delivery) On every occasion the employee enters with nothing in hand and leaves with boxes / box in hand (these items are minimum R5000 each) - one clip shows entrance with box and leaves with same box - this is consistent with items missing - size / weight wise and thus these items are obscured / hidden
    Points of note - 1. was not supposed to be there over the weekend 2. other person accompanying my employee is competition and central to all the funneled services, tasks, errands and stock.
    These are but a few examples - too many to mention - using company card for personal use, using same card for fuel of sister company’s car, using the couriers (both the parties mentioned) while being paid by mine as well as petrol being paid by company - thus other company profits, is furnished with stock staff and groceries - and is paid for services rendered - (and accounts all paid by me)
    Most of these matters are difficult to definitively prove - but there is a pattern and I would like to take matters further

    my thoughts are - immediate dismissal without pay and criminal charges of fraud and theft as well as the other party for acceptance of stolen goods? (value thus far > R500 000)

    Need advice

  4. #34
    Diamond Member Justloadit's Avatar
    Join Date
    Nov 2010
    Location
    Johannesburg
    Posts
    3,480
    Thanks
    134
    Thanked 695 Times in 593 Posts
    Blog Entries
    1
    You have to build a case for dismissal.
    I suggest you contact your labour broker to provide assistance, or get a private investigator to do some digging and gather the information you require.

    Rather do this sooner than later. The most difficult part here is that you have to accept that something untoward has occurred, and that you now have to act on it.
    You did not say which part of SA your are in. The longer you prolong this the higher the loses, and the more aggravated you will become, which will cause you to act irrationally and do be precedurely incorrect causing even more losses.
    Victor - Knowledge is a blessing or a curse, your current circumstances make you decide!
    Solar pumping, Solar Geyser & Solar Security lighting solutions - www.microsolve.co.za

  5. #35
    Diamond Member Citizen X's Avatar
    Join Date
    Sep 2011
    Location
    lenasia
    Posts
    3,404
    Thanks
    868
    Thanked 701 Times in 613 Posts
    Quote Originally Posted by Vanash Naick View Post
    No, I haven't come across any leading case of any mitigating circumstance that can successfully prevent or delay the ultimate sanction of theft.
    Actually, I have. The position regarding 'petty theft,' is somewhat muddled by two contradictory judgments regarding the very same employer Shoprite Checkers. One is known as the Zondo Judgment and the other is called the Davis Judgment.

    Shoprite Checkers (Pty) Ltd v CCMA & others [2008] 12 BLLR 1211 (LAC) and Shoprite Checkers (Pty) Ltd v CCMA & others [2008] 9 BLLR 838 (LAC).

    Zondo judgment


    Davies Judgment

    Please take some time to read both judgments, they are not lengthy. This is another conversation to be had.
    Last edited by Citizen X; 11-Oct-16 at 09:37 PM.
    “Ubuntu is the essence of being humane" Desmond Tutu
    Spelling mistakes and/or typographical errors I found in leading publications.
    Click here
    sabbaticus

  6. #36
    Platinum Member sterne.law@gmail.com's Avatar
    Join Date
    Oct 2009
    Location
    Durban
    Posts
    1,332
    Thanks
    38
    Thanked 566 Times in 413 Posts
    Blog Entries
    7
    You should see Edcon v Reddy.

    The SCA has determined that the employer must prove and establish the break down in trust. You can no longer presume the trust is broken.

    The judgment was applied in a case where the commissioner agreed that the employee had committed overtime and time clock fraud - but because the employer failed to lead evidence showing the breakdown of trust, the dismissal was unfair.
    He was re-instated.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

  7. #37
    Diamond Member Citizen X's Avatar
    Join Date
    Sep 2011
    Location
    lenasia
    Posts
    3,404
    Thanks
    868
    Thanked 701 Times in 613 Posts
    Quote Originally Posted by sterne.law@gmail.com View Post
    You should see
    Quote Originally Posted by sterne.law@gmail.com View Post
    Edcon v Reddy.

    The SCA has determined that the employer must prove and establish the
    break down in trust. You can no longer presume the trust is broken.

    The judgment was applied in a case where the commissioner agreed that the employee had committed
    overtime and time clock fraud - but because the employer failed to lead evidence showing the breakdown of trust, the dismissal was unfair.
    He was re-instated.


    I just read the judgment. So, it's insufficient for an initiator to simply say that the trust relationship is irretrievably broken down. The initiator must lead evidence to this effect. The initiator must also convince the chairperson that dismissal is an appropriate sanction. Lesson: If big companies such as Edcon and Shoprite Checkers(based on the case-law) can get it wrong, with senior counsel guiding them, how much more so for the small business. From experience, I've found that many small and medium business often seek advice when it's way too late. Many small and medium businesses hold labour law in low regard, not realizing that this is a specialized area of law.

    Paragraph 2 of this judgment is damning

    Unhappy with the award Edcon launched review proceedings in the Labour Court (LC) in terms of s 145 of the Labour Relations Act 66 of 1995 (LRA) with a view to setting it aside. The LC (Pillay J) declined to set the award aside. Undaunted, Edcon appealed to the Labour Appeal Court (LAC), with that court’s leave, but that effort again came unstuck when the LAC dismissed the appeal, concluding that the award was unassailable. The judgment of the LAC has been reported – Edcon Ltd v Pillemer NO & others (2008) 29 ILJ 614 (LAC). Edcon’s appeal is before us with special leave of this court.


    This is also not a lengthy judgment, please take some time to read it at the link below:
    Edcon Ltd v Pillemer NO and Others (191/08) [2009] ZASCA 135; [2010] 1 BLLR 1 (SCA); (2009) 30 ILJ 2642 (SCA) (5 October 2009)




    Last edited by Citizen X; 11-Oct-16 at 09:44 PM.
    “Ubuntu is the essence of being humane" Desmond Tutu
    Spelling mistakes and/or typographical errors I found in leading publications.
    Click here
    sabbaticus

  8. #38
    Email problem
    Join Date
    Feb 2016
    Location
    Durban
    Posts
    41
    Thanks
    9
    Thanked 4 Times in 4 Posts
    No one is saying anything about the injured party, i.e. the owner of the cheap cellphone. If this is your client one might need to consider the client's opinion, in the light of future business with said client. If the phone has been returned to the original owner, with an apology from the thief, and the cheap phone owner chooses to accept this as sufficient, then:

    1) based on the admission of guilt, place a final written warning on file;
    2) have a heart-to-heart with the offender and explain the consequences of such foolish action and that desperation does not need to lead to incarceration;
    3) postpone the permanence option by six months to establish remorse and rehabilitation;
    4) charge the supervisor with misconduct and finalise with a verbal warning (the supervisor is probably not the best trained middle management person you've ever known and here is an opportunity to teach on the value of solidarity with subordinates versus loyalty to company, all of which has a direct influence on one's future in the organization).

    The bottom line is, show you're human, make a difference in these two lives and turn potential outcasts into star employees.

    This is not simply a devil's advocate argument, this is what I think is inherently wrong in the workplace is South Africa. Labour legislation should be seen as a departure point. When this becomes your destination, a workplace is created where kindness, friendliness, aspiration and belonging is replaced with get-as-much-as-you-can and watch-your-ass.

    Stealing from your employer is wrong, whether you get caught or not. Stealing only happens when it is a "mine and theirs" dichotomy. If we're all on the same side it's all "mine" and I maintain it, take good care of it and use it wisely (whatever "it" might be).

    I'm sure you get where I'm going with this!!

  9. #39
    Platinum Member sterne.law@gmail.com's Avatar
    Join Date
    Oct 2009
    Location
    Durban
    Posts
    1,332
    Thanks
    38
    Thanked 566 Times in 413 Posts
    Blog Entries
    7
    In terms of proving your case, do not forget that the test for labour matters is not as high as that for criminal matters.

    On your brief summary - this is not petty theft, it is a purposeful and deliberate attempt to steal.
    It seems that while you may not have direct proof, ex footage of a person taking something, you have enough circumstantial evidence.
    As an example:

    I have proof that I left R 10 000 on the table in my office.
    On my return it is gone.
    Camera footage shows that only Jack the Ripper entered my office.
    - The only logical conclusion based on the undisputed facts is that JtR took the money

    Let us say that JtR will claim maybe I pretended the money was gone -
    But my evidence shows that on the day the money went missing - that evening JtR was seen splashing out at the fanciest restaurant and the next day came to work with a new Iphone and genuine name brand watch.

    The facts established lead to the conclusion that JtR took the cash. Whilst no direct evidence, there is enough circumstantial evidence to get a guilty outcome.

    Employers often worry that they cannot prove a certain fact. Let us say we know the employee went to the bar and lunch and paid for 6 beers. We want to charge for drinking on duty.
    As the employer we think: BUT I cannot prove he drank the beers.
    Our evidence is the bill and that he parked the car skew and bumped the wall when he returned.

    That evidence meets our onus - it is the employee's job to prove he never drank those beers, not our job.

    In terms of sanction -
    The theft was deliberate and devious.
    An employer can not be expected to watch over the back of their employee.
    The employee's position, manner of misconduct all point to a breakdown of trust.
    Dismissal seems appropriate.

    Edcon v Reddy does not mean we cannot dismiss people. On the contrary it merely means you must set out why the trust is broken.
    Edcon trust stemmed from the deceit of covering up a car accident and repairing it so company would not know. It is unlikely that the employee would do so again

    The question to ask is: -was this an aberration or is it an offence that would probably not happen again.

    Example - If an employee committed time clock fraud - it is arguable that the relationship could still continue - the company will need to show that it cannot (it was frequent, employee works independently etc)

    Despite Edcon, it is unlikely that theft will warrant a sanction short of dismissal
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

Page 4 of 4 FirstFirst ... 234

Similar Threads

  1. [Article] Agreed pregnancy dismissals frowned on by the law
    By BBBEE_CompSpec in forum Labour Relations and Legislation Forum
    Replies: 0
    Last Post: 30-Oct-09, 07:58 PM
  2. Unfair dismissal???
    By Taswell Strydom in forum Labour Relations and Legislation Forum
    Replies: 23
    Last Post: 02-Feb-09, 09:29 PM
  3. [Question] Unfair dismissal
    By jenine in forum General Business Forum
    Replies: 8
    Last Post: 13-Aug-08, 09:10 AM

Tags for this Thread

Did you like this article? Share it with your favourite social network.

Did you like this article? Share it with your favourite social network.

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •